608 F.

2d 537

Richard S. SENNETT II, Appellee,

v.
SHERIFF OF FAIRFAX COUNTY, VIRGINIA, Appellant.
No. 79-6060.

United States Court of Appeals,

Fourth Circuit.
Argued Aug. 24, 1979.
Decided Nov. 9, 1979.

Thomas E. Gallahue, Asst. Commonwealth's Atty., for appellant.

William B. O'Connell, Jr., Arlington, Va., for appellee.
Before BUTZNER, HALL and PHILLIPS, Circuit Judges.
K. K. HALL, Circuit Judge:

The Commonwealth appeals from an order of the district court granting habeas
corpus relief to Virginia prisoner Richard C. Sennett II, who was convicted in
1977 of robbing a gas station. The district court held that Sennett had been
denied a fair trial because the Commonwealth's attorney refused, despite a
specific request by defendant's counsel, to identify two persons whose
testimony could have discredited one of the Commonwealth's two key
identification witnesses. We agree, and affirm.

As the district court noted, the Commonwealth's case was "far from
overwhelming" and was based entirely upon the testimony of two witnesses.

Michael Kelly, the station attendant, testified that he was held up at gunpoint at
about 9:20 p. m., the robber took $150.00 and drove away in a small yellow
car. The defendant was picked up shortly thereafter, six miles from the scene,
in a small yellow car, but minus the money and the gun. Sennett was
immediately taken to the gas station for a showup, but Kelly was not certain
that the defendant was the robber and said he did not want to "go to court on it."

Nine days later he made a positive identification from a photo array.

4

Cosmos Grasso told the police, and later testified at trial, that he had been
visiting at his daughter's house across the street from the gas station, when
shortly before the robbery, at about 9:10 p. m., he saw a small yellow car drive
into the station. He and his granddaughter saw two young women there that
they knew. As they watched, one of the women walked over to the car and
spoke to the driver. Then the car drove away. This evidence reinforced the
attendant's identification of the defendant and may have allowed the jury to
conclude that the gun and the money were not found in defendant's car because
they had been passed to an accomplice. When the young women were
questioned by a police investigator, they denied being at the station that
evening and claimed no knowledge of the crime.

Before trial, defense counsel specifically requested the names of the two young
women, but the Commonwealth's attorney and the police investigator refused to
disclose this information. Independent efforts to discover their identities,
through a private investigator, were also unsuccessful. The women were not
available at trial.

We think the Commonwealth's failure to turn over the requested information

violated Sennett's right to a fair trial. In United States v. Agurs, 427 U.S. 97, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976),1 the Supreme Court admonished:

7
Although
there is, of course, no duty to provide defense counsel with unlimited
discovery of everything known by the prosecutor, if the subject matter of (a specific)
request is material, or indeed if a substantial basis for claiming materiality exists, it
is reasonable to require the prosecutor to respond either by furnishing the
information or by submitting the problem to the trial judge. When the prosecutor
receives a specific and relevant request, the failure to make any response is seldom,
if ever, excusable.
8

427 U.S. at 106, 96 S.Ct. at 2399.

The identities and statements of the young women were material. The
Commonwealth's case was not strong, and Grasso's testimony was critical. It
supported the attendant's identification and rebutted Sennett's testimony that he
was not at the station on the evening of the robbery. The statements of the two
young women contradicted Grasso's detailed and personalized account.

10

This is not a case where the impeachment evidence would be merely

cumulative or have no significant effect on the witness' credibility. See United

States v. Figurski, 545 F.2d at 391-92. Therefore, we think the prosecution's
refusal to honor defense counsel's specific pretrial request denied Sennett a fair
trial.
11

Accordingly, we affirm the judgment of the district court.

12

AFFIRMED.

Evidence tending to discredit a government witness falls within the rule of

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) as
refined in Agurs. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972); United States v. Figurski, 545 F.2d 389, 390-91 (4th Cir.
1976); Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976)